Presentation to the Special Rapporteur on the rights of Indigneous - - PDF document

Black Hills Sioux Nation Treaty Council Pine Ridge Agency, SD

Chief Oliver Red Cloud - Itancan Alexander White Plume - Eyapaha

P .O. Box 535, Manderson, SD 57756 - 605-455-2155

MEMBER RESERVATIONS

Cheyenne River Crow Creek Fort Peck Lower Brule Pine Ridge Rosebud Standing Rock Santee Yankton

Presentation to the Special Rapporteur on the rights of Indigneous Peoples at Sinte Gleska University on the Lakota Homeland on May 1 and 2, 2012

“The 1868 F. Laramie Treaty is an international legal document and the basis of our international relationship with the United States and the world. The U.S. government and its people began to violate this Treaty immediately upon the “discovery” of gold in the He Sapa (Black Hills) and have continued to violate this Treaty to this day. The U.S. government and its people realized the abundance of minerals, plants and land within our land base, and their appetites for wealth were whetted, and indeed, have never been satiated as they continue to extract from Mother Earth in order to profit from this degradation. “The Black Hills Sioux Nation Treaty Council reaffirms its Declaration of Inherent Authority and Sovereignty to the Indian Reorganization Act government of the Bureau of Indian Affairs of the Interior Department of the U.S. government, and to the American President Barrack Obama, as well as the U.S. State Department. This is necessary as the Indian Reorganization Act (IRA) government continues to operate as the colonizer of the Lakota, to deepen assimilation policies of the U.S., is unable to enforce treaty Rights, and moves in and out of discussion to accept money for Treaty violations.”1 None of the actions by U.S. colonizers and their agents have been adequately changed by the Declaration on the Rights of Indigenous peoples. Therefore, Given the statement of our traditional governing authority, we would make the following recommendations to the Special Rapporteur on the Rights of Indigneous Peoples : 1. That action-oriented mechanism(s) must be created in order to resolve issues of conflict that arise from violations to the principles and standards protecting the rights and responsibilities of Indigenous peoples over our lands, territories and resources as set forth in the Declaration on the Rights of Indigenous Peoples and other international laws and standards, in particular the current universal crisis facing Sacred Water. 2. That action-oriented mechanism(s) must be created in order to resolve issues of conflict that arise from violations to the principles and standards protecting the rights of Indigenous peoples from unilateral, dictatorial actions by member nations who willfully and purposely violate the right to free,

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1 Black Hills Sioux Nation Treaty Council, Declaration of Inherent Sovereignty and Authority as Separate and

Distinct from 1934 Indian Reorganization Act Government, Resolution of March 29, adopted by consensus of all bands.

prior and informed consent of Indigneous peoples as set forth in paragraphs 10, 11, 19, 28, and 29 of the Declaration on the Rights of Indigneous peoples. Recent violations by the United States and Canadian governments include the failure to seek the free, prior and informed consent of Indigneous peoples regarding the climate-killing Keystone XL-Pipeline. Here on our territory in the Lakota Homeland, this recently resulted in the necessity of our peoples to protect the land by blockading giant trucks from illegally traversing our land. 3. That action-oriented mechanism(s) must be created in order to resolve historical and contemporary treaty issues that arise from violations to treaties between settler nations and Indigneous

• nations. For example, it is well-established that the United States of America has broken every treaty it

legally and internationally acknowledged with Indigenous nations. Through a process of domestication, lies, deceit and outright genocide, the violation of these treaties has never been addressed justly or fairly, nor have the American people been held accountable for the results of treaty violations on the Indigneous peoples of our continent. 4. That action-oriented mechanisms must be created to resolve conflicts that arise from violations to the principles and standards protecting the rights and responsibilities of Indigenous peoples, that these mechanisms must be independent, balanced, inclusive and transparent and that these mechanisms must have the ability to recommend to the United Nations and its agencies actions designed to enforce, enhance, highlight and publicize its conclusions in order to pressure violating member nations to comply with international law and standards with respect to Indigenous peoples. 5. That action-oriented mechanisms must be created to resolve conflicts that arise from violations to the principles and standards protecting the rights and responsibilities of Indigenous peoples, that these mechanisms must include, inter alia, the establishment of ways and means of ensuring participation of indigenous peoples’ governance institutions, including indigenous nations, councils, parliaments, and traditional and other forms of governments, independent of member nations’ colonizing institutions including the Indian Reorganization Act governments. These action-oriented recommendations are the result of the failure of most governments of member states, especially the United States of America, to take steps to implement the Declaration on the Rights of Indigenous Peoples. Despite its “support” of the Declaration issued by the President of the United States on December 16, 2011, that “support” is hallow and meaningless. In nearly every sentence of the statement where “support” is indicated, there is a significant qualification or denial placed upon the tenets set forth in the Declaration. [The Declaration] expresses aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies. Which begs the question: under what circumstances would it be inappropriate to improve law and policy? Given the lessons of history, it is clear that improving laws and policies in the U.S. is often considered inappropriate if it extends equal rights and justice to Native peoples and nations. The clarity

• f the United States position is repeated when they write:

“The United States is therefore pleased to support the Declaration’s call to promote the development of a new and distinct international concept of self-determination specific to indigenous peoples. The Declaration’s call is to promote the development of a concept of self-determination for indigenous peoples that is different from the existing right of self- determination in international law. This statement is indication that, rather than leading in the work in human rights, the United States prefers to arrogantly stand outside the circle of nations while demanding that others conform to policies the U.S. is happy to violate. Please see the full text of our objections attached hereto.

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For these reasons we have recommended the action-oriented steps set forth herein. Additionally, we would like to resubmit herewith the Response of Owe Aku International Justice project to the Questionnaire of the Special rapporteur on the rights of Indigenous peoples on the issue of extractive industries and its affects on our people and territory. ATTEST:

• Chief Oliver Red Cloud, Itacan
• Alex White Plume, Eyapha

For more information or to support our recommendations, please contact:

Kent Lebsock Alex White Plume Director Eyapaha Owe Aku International Justice Project Black Hills Sioux Nation Treaty Council

• weakuinternational@me.com

alexanderwhiteplume@yahoo.com

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Owe Aku International Justice Project, 720 W. 173rd St., #59, NYC NY 10032, oweakuinternational@me.com, 646-233-4406

Response of Owe Aku International Justice Project to the Questionnaire of the Special Rapporteur on the rights of Indigenous Peoples pursuant to United Nations Human Rights Council Resolution 15/14 of 30 September 2010, Reference: Indigenous (2005-1)

• 1. What are the major concerns regarding the extraction or development of natural resources within
• r in close proximity to the territories of indigenous peoples? Please provide examples of any

specific negative experiences and information about the lessons learned from those experiences. Uranium mining by technique of in situ leaching (ISL) is proven to release dangerous, carcinogenic contaminants, including Arsenic and Alpha Emitters (Radium 226 & 228, Barium, Thorium 230). Of the eight water wells sampled [at Pine Ridge? or where?] by the US Federal Agency for Toxic Substances and Disease Registry (ATSDR) in 1999 and 2000, half exhibited a maximum contaminant level (MCL) for Radionuclides exceeding the Environmental Protection Agency’s (EPA’)legal MCL for Gross Alpha Particle activity. The Indian Health Service Arsenic Tech Team reported in 2005 that 98 wells in Pine Ridge have levels of Arsenic two to twelve times higher than the MCL prescribed by the US government. In response to these findings, the source of water for the families originally drawing from the contaminated wells was changed to either pipelines from the Missouri River or delivery via trucks. Also, growing concern of the source of the contamination must be addressed with a definitive study across the reservation to identify all sources of contamination - in river systems, springs and groundwater. Despite these deadly circumstances, uranium mining giants Crow Butte Resources, Powertech, the Newtron Energy Corporation, and Cameco are planning the opening of several mines around the Pine Ridge Reservation, in the North Trend area, the Three Crow area, the Black Hills area and the Wild Horse Sanctuary, as well as in Crawford, Nebraska.

• 2. What are the possible benefits for indigenous peoples of extractive or natural resource

development within or in close proximity to their territories? Please identify any specific examples of positive cases or good practices. In return for mining the known uranium deposit under the Pine Ridge land-base, the Oglala Lakota Tribal government may be offered billions of dollars by large and small multi-nationals. The Native American Energy Group (NAEG) has approached the Oglala Sioux Tribe (OST) President numerous times in the past, proposing economic development, in the form of revenue and home construction, as a solution to the poverty and unemployment in Pine Ridge. They have used the promise of a comprehensive water study across the entire reservation in exchange for uranium site tests. However, these do not represent good practices. Although this is one of the few uranium exploration “development” projects to actually propose any financial “benefit” for Pine Ridge, it trades on poverty that sacrifices our people’s long time survival for short term gain and a serious violation to the sanctity of the Earth. Additional violations include a failure to follow of the Free, Prior and Informed Consent provisions of the Declaration on the Rights of Indigenous peoples under international human rights standards. Because the mining would involve use of Treaty territory, the entire issue must involve participation from traditional Lakota leaders and the entirety of the Lakota Oyate (nation), not just the OST President or colonial Indian Reorganization Act Government illegally installed by the United States in 1934. Known opposition has been publicly announced by the traditional leadership of the Black Hills Sioux Nation Treaty Council, the Natural Resources Protection Team (a unit of the BIA government), as well as several community organizations including Owe Aku (Bring Back the Way).

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• 3. What are the principal steps required for avoiding negative impacts for indigenous peoples from

the extraction or development of natural resources and for establishing good practices in this regard? To the Oglala Lakota, environmental justice means the right to develop our own environmental protection programs with water and air quality standards set by the Lakota Nation. By the authority of our rights guaranteed by treaty and the right to self-determination guaranteed, inter alia, in the Declaration on the Rights of Indigneous Peoples, we are entitled to to implement our

• wn environmental programs and standards.

The decision making process regarding any use of Earth resources must include recognition of the traditional government, the Lakota people as a whole, and the requirements of the Fort Laramie treaties of 1868. The people have a right to be informed of all possible outcomes of uranium mining on future generations, water, land, people, animals, and plants. Resources are required for an independent, comprehensive report on energy companies’ past violations to local, national and international standards. Following the study, remediation of violations must be required and enforceable. In the meantime, a permanent moratorium on any future mining must be implemented unless agreed to by the Lakota Oyate pursuant to treaty provisions and the applicability of international standards, including free, prior and informed consent. Owe Aku strongly urges the Special Rapporteur to eliminate use of the term “consultation”, and utilize the more applicable human rights standard, “free prior informed consent” (FPIC). As the Special Rapporteur is well aware, consultations are often performed with a preconceived

• utcome by the greater negotiating power and do not realistically promote debate or

participation with all interested parties. By contrast, the right to FPIC promotes the full and effective participation of indigenous peoples and is the standard we, as an Indigneous nation, support.

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Black Hills Sioux Nation Treaty Council

Pine Ridge Agency, SD Chief Oliver Red Cloud - Itancan Alexander White Plume - Eyapaha

P .O. Box 535, Manderson, SD 57756 - 605-455-2155

MEMBER RESERVATIONS

Cheyenne River Crow Creek Fort Peck Lower BrulePine Ridge Rosebud Standing Rock Santee

Resolution of the

Black Hills Sioux Nation Treaty Council Rejection of the United States’ Statement

• f

U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples

Owe Aku International Justice Project, with the support of the Black Hills Sioux Nation Treaty Council, is pleased that the United States announced its “support” of the United Nations Declaration on the Rights

• f Indigenous Peoples on December 16, 2011. Although, the United States was the last country in the

United Nations to do so, with the “support” of the United States, the Declaration now enjoys, at least nominally, universal support amongst the world family of nations, including the Lakota Oyate. However, reaction to U.S. support did quickly turn to disappointment. We were as dispirited by the unreasonable and inequitable limitations and qualifications placed on the Declaration by the United States in its official statement. In the first paragraph of the “support” statement they make it is clear that the Declaration is in no way a legal document, nor are they bound by it. “The United States supports the Declaration, which—while not legally binding or a statement of current international law—has both moral and political force.”2 Despite the President’s optimistic public speech introducing U.S. support, in nearly every sentence of the statement where “support” is indicated, there is a significant qualification or denial placed upon the tenets set forth in the Declaration. [The Declaration] expresses aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.3 Which begs the question: under what circumstances would it be inappropriate to improve law and policy? Given the lessons of history, it is clear that not improving laws and policies in the U.S. is often considered inappropriate if it extends equal rights and justice to Native peoples and nations. In their

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2 Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples

Initiatives to Promote the Government-to-Government Relationship & Improve the Lives of Indigenous Peoples, p. 1

3 Id. p. 1

statement that purports to “support” the Declaration, they reiterate the U.S. has done nothing but justify continuance of discriminatory policy. The world has long recognized that the United States has lost any moral authority it may have ever claimed with regards to human rights or even the international laws of aggression and peace. This statement is further indication that, rather than leading in the work in human rights, the United States prefers to arrogantly stand outside the circle of nations while demanding that others conform to policies the U.S. is happy to violate. They even manage to get in a comment that reduces Native Americans (and probably, more significantly, our lands and territories) to an exclusive right of dominion. Apparently the State Department and the President are comfortable referring to Indians in a subservient, unequal and even proprietary manner. “...few have been more marginalized and ignored by Washington for as long as Native Americans—our First Americans.” Not “the First Americans” or simply “First Americans”, but “our First Americans.” This is hardly an accident given the obvious swarm of lawyers that combed through the document adding the numerous limitations. “The decision by the United States to support the Declaration was the result of a thorough review of the Declaration by the relevant federal agencies.”4 In his remarks in November during Native American Heritage month, he acknowledged that: “While we cannot erase the scourges or broken promises of our past, we will move ahead together in writing a new, brighter chapter in our joint history.”5 We would respectfully suggest that a good start at moving ahead togethering would be to honestly endorse the Declaration, recognize the human rights of Indigenous peoples, and honor the 335 treaties that have been broken. As it stands, the U.S. support of the Declaration is a meaningless shell that permits the American people and their government to continue the colonial policies it has practised with respect to Indian peoples since the settler nation, the United States, established its own right to self-

• determination. To expect that we, as Indigenous peoples, would accept anything less is a barely veiled

attempt to deny our humanity. Further evidence of this attitude continues In the most alarming part of the statement of support when the U.S. states: “The United States is therefore pleased to support the Declaration’s call to promote the development of a new and distinct international concept of self-determination specific to indigenous peoples. The Declaration’s call is to promote the development

• f a concept of self-determination for indigenous peoples that is different from the

existing right of self-determination in international law. 6

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4 Id. p. 1 5 Id. p. 1 6 Id. p. 3

This is nothing more than saying that, as Indigenous peoples, we are NOT entitled to the same rights as other peoples. By adding their own unilateral spin on the Declaration , as though it were a Fox News story, they are stating that the Declaration indeed supports US Federal Indian policy, colonization, disenfranchisement from resources, and isolation from ecological and economic self- determination. Nonetheless, even dismissing their redefinition of self-determination and the removal of Indigenous peoples from the rights granted to all other peoples in the world, the U.S. limits even their own narrow definition of self-determination to federally recognized tribes. This, then, makes the Declaration simply another manipulation in their policy of domestication, assimilation and colonization of Indian peoples. There is no change here. “The Declaration’s concept of self-determination is consistent with the United States’ existing recognition of, and relationship with, federally recognized tribes as political entities that have inherent sovereign powers of self-governance.” 7 Self-governance refers only to BIA tribal councils that were installed unilaterally by the United States government, 8 and owe allegiance and are dependent on Washington’s programs regarding Indian lands and resources. Their statement on the Declaration actually uses many pages to list the programs they use in this process. In the section entitled “Protection of Naive American Lands and the Environment” 9 they actually state that although “ “some of the most grievous acts committed by the United States and many other States against indigenous peoples were with regard to their lands, territories, and natural resources” … “the United States understands these provisions to call for the existence of national laws and mechanisms for the full legal recognition of the lands, territories, and natural resources indigenous peoples currently possess. … [The U.S.] “intends to continue to work so that the laws and mechanisms it has put in place to recognize existing, and accommodate the acquisition of additional, land, territory, and natural resource rights under U.S. law function properly and to facilitate, as appropriate, access by indigenous peoples to the traditional lands, territories and natural resources in which they have an interest.” [Emphasis added.] It would be difficult to insert more qualifications and references to U.S. authority over Indian people. Fortunately this is a written statement, otherwise the the wagging of the “forked tongues” would be visible from a satellite in outer space. Part of the rights under US law for “tribes” is to have land acquired and held in trust.

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7 Id. p. 3 8 Even though the U.S. held elections on the institution of tribal councils, at Pine Ridge it never passed, but was

forced upon the people. This does not demonstrate a right to self-determination under international law.

9 Id. p. 6

The Obama Administration claims they have acquired over 34,000 acres of land in trust10 on behalf of Indian tribes. They indicate that this is a good thing. What is not added to the back-patting is that “land in trust” merely continues the same policy of trust land that is given to mining, ranching, and other corporate interests, instead of stewardship by Indian peoples as clearly outlined in the Declaration. They even cite the case, City of Sherrill v. Oneida Indian Nation11 in which they deny treaty rights based

• n the Doctrine of Discovery.12 This is hidden under the guise of protecting tribal lands, a clear

distortion of the truth. “The United States has also sought to protect tribal lands, and tribal jurisdiction over those lands, in several other court cases, including the City of Sherrill v. Oneida Indian Nation…” 13 Paternalism is clearly evident again in their discussion of their “training program” for Indians to prepare us “to manage their own natural resources.” An ironic concept since, for thousands of years, Indian nations were capable of managing our resources without U.S. interference. Indeed, it is that very interference which made it necessary for the Declaration to include numerous articles on the rights of Indigenous peoples to manage, access, conserve and use our resources according to our traditions and customs. “Sixteen different tribes, from Maine to Alaska, participated this summer in the Department of the Interior’s Bureau of Indian Affairs Water Training Program. The Training Program is taught by instructors from several Department of the Interior

• bureaus. The program strengthens tribal governments and prepares them to manage

their own natural resources with qualified tribal government employees who have the necessary expertise to help alleviate the shortage of technical expertise on Indian reservations.”14

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10 Id. p. 6 11 City of Sherrill v. Oneida Indian Nation of New York, 125 S. Ct. 1478, 148384 (2005).

12 United Nations, E/C.19/2010/13, Preliminary study of the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery Submitted by the Special Rapporteur, ¶ 49. “That the Doctrine of Discovery is still being used as an active legal principle by the United States Supreme Court in the twentieth-first century is revealed in the case City of Sherrill v. Oneida Indian Nation of New York58 decided in March 2005, exactly 50 years after the Tee-Hit- Ton ruling. The case involved a dispute over taxation of ancestral lands of the Oneida Indian

• Nation. During oral arguments, it became clear that the case would hinge on whether, in the
• pinion of the Court, the Oneida Indian Nation “has sovereignty status” with regard to the

ancestral lands the Oneida Nation had reacquired. To contextualize the Court’s decision and to decide the sovereign status of the Oneida Indian Nation, the Supreme Court relied upon the Doctrine of Discovery. This is revealed in footnote number one of Justice Ruth Bader Ginsberg’s decision for the Court majority: “Under the ‘Doctrine of Discovery’”, wrote Justice Ginsberg, “... fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original states and the United States”. As documented by this preliminary study, the Supreme Court’s reference to the Doctrine

• f Discovery places the context for the Court’s decision in Sherrill v. Oneida Indian Nation of New

York within the Framework of Dominance, dating back to the era of the Vatican papal bulls.”

13Supra p. 6, Announcement of the U.S. on the Declaration 14 Id. p. 4

This particular example of an agency program designed to “enhance tribal self-determination” is particularly ill conceived given the fact that mining projects that are contaminating water and adding deadly heavy metals and chemicals to the ground water throughout the West, are being supported and encouraged by the United States government. “Tribal self-determination” has resulted in water contamination over the objections of Indian nations that are wholly inconsistent with the Declaration. As to redress, their qualifications are even more imperial and reflect the same attitude used since 1776. The various cases and acts that they cite as enhancing tribal authority actually only enhance federally recognized tribes continued dependence on the federal government and an inability to act under the provisions of self-determination set forth as it is defined in the Declaration. “The United States will also continue to implement the many U.S. laws that require the agreement of federally recognized tribes or indigenous groups before certain actions can be taken or that require redress for takings of property.”15 Although they state that they are pursuing effforts to implement laws that “require redress for takings of property,” they go on to list a series of “new offices to ensure proper implementation of their consultation policies.” Consultations do not address the taking of property, the violation of treaties or the blatant disregard for basic human rights when it comes to Indian people in the U.S. Self-determination is not a concept to be defined by the United States, its President, its Congress or its

• people. It is an international legal concept that all member nations of the UN adhere to and

understand. “[The policies being adopted by the U.S.] demonstrate not only that the United States has a well-developed court system that provides a means of redress for many wrongs suffered by U.S. citizens, residents and others – including federally recognized tribes and indigenous individuals and groups -- but also that redress is available from the U.S. Congress under appropriate circumstances. The United States will interpret the redress provisions of the Declaration to be consistent with the existing system for legal redress in the United States, while working to ensure that appropriate redress is in fact provided under U.S. law.”16 Again this is a distortion of the reality of the lives of Indian peoples who find themselves living within U.S. established borders. As pointed out in many studies and the interventions and testimonies before the United Nations by Indigenous peoples in many different international forums, neither recourse nor redress can be found within the domestic legal systems of the United States. On the contrary, the United States’ history with respect to Native nations and peoples, as well as its contemporary dominion

• f land and resources, also provide ample evidence of the inadequacies of U.S. domesitc policies

towards Indian peoples.17 United States support of the Declaration is, in fact, harmful when looked at carefully and analyzed under the guiding principles underpinning purpose of the Declaration. Because of its paternalistic and unsupported separation of Indigenous peoples from the same rights afforded to all other peoples, the

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15 Id. p. 5 16 Id. p. 8 17 see Towards the International Court of Justice, An Analysis of the Case of the Black Hills Sioux Nation Treaty

Council on the violations of the Fort Laramie Treaty of 1868: The Legal and Historical Basis for International Adjudication, Owe Aku International Justice Project, 2011.

“support” by the United States, should be seen as a warning to Indigneous peoples of true American

• intentions. Despite their ongoing belief in some kind of moral authority when it comes to rights,

especially, human rights, the United States on behalf of its people, continues to stand outside the family

• f nations and insists that other nations adhere to international law and standards, while they arrogantly

interpret everything from torture to colonization in terms of their interests alone. The Black Hills Sioux Nation Treaty Council rejects the “support” provided by the United States in its entirety and stand by the principles of international law to which all peoples are entitled and to which all peoples owe a duty to responsibly act according to those laws and principles. C-E-R-T-I-F-I-C-A-T-I-O-N I, the undersigned Secretary of the Black Hills Sioux Nation Treaty Council, do hereby certify that the above resolution has been approved by consensus of the Oglala Delegation of the Black Hills Sioux Nation Treaty Council, effective January 19, 2011 ATTEST:

• Chief Oliver Red Cloud, Itacan
• Frederick Cedar Face, Secretary

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